09-1684-A (Lichôdmapwa v. L'asbl Festival de Theatre de Spa)

Description

Belgian court found a theater company liable for violating the CC BY-NC-ND license on a musical work. (CC BY-NC-ND 2.0 Belgium)

Case summary

'History' In 2004, the Belgian band Lichôdmapwa released the song “Abatchouck” under CC BY-NC-ND 2.0 Belgium license. Several years later, one of the band members heard about 20 seconds of the 3:20 song on an advertisement for a theater and festival company. Lichôdmapwa contacted the theater company to see if they could negotiate a deal. The negotiations failed and Lichôdmapwa sued the theater company for copyright infringement in September of 2009.

'The Band’s Claims' Lichôdmapwa claimed that the theater company had violated all three of the terms of their chosen CC license. The theater had modified the original work to make it fit in the commercial, violating the No Derivatives provision. The theater violated the Non-Commercial clause by using the work in an advertisement. And the theater violated the attribution requirement by not including any mention of the song’s artist in the commercial.

The band asked for 10,380 Euros in damages, plus to have the theater pay for the publication of the court’s judgment in a magazine called “Dogmagazine.”

'The Theater Company’s Defense' The theater company attempted to claim ignorance, arguing that it was unaware of the terms of the license. It appears the theater also argued that since Lichôdmapwa is not a member of the Belgian collecting society, SABAM, the band had no rights to collect payments for the music’s use.

'The Court’s Decision' Judge Vandeput did not agree with the theater company’s defenses. She recognized the validity of Creative Commons licenses. She also confirmed that the musicians’ decision to not join SABAM and instead release their music more openly should not prevent enforcement of the license.

As to the theater company’s claim of ignorance, Judge Vandeput found that this was no excuse for violating the license. As an organizer of festivals and a company involved in using licensing, the company should have known to look for and follow the terms of the license. In addition, the website from which the theater downloaded the music, http://www.dogmazic.net, clearly mentions the terms of the license. There was no reason for the theater company not to know about the license or its terms.

'Holding' Even though the band is not part of SABAM, the court held that they still suffered damages. The Judge awarded the band 1,500 Euros per license term violated, 4,500 Euros.